Australian Conservation Foundation v Forestry Commission

Case [1988] FCA 41


Re: AUSTRALIAN CONSERVATION FOUNDATION, THE WILDERNESS SOCIETY INC. AND
TASMANIAN CONSERVATION TRUST INC.
And: FORESTRY COMMISSION; MICHAEL MANIFOLD HELSHAM, ROBERT HENRY WALLACE and
PETER PHILLIP HITCHCOCK AND COMMONWEALTH OF AUSTRALIA
No. TG14 of 1987
Lemonthyme and Southern Forests (Commission of Inquiry) Act 1987

COURT

IN THE FEDERAL COURT OF AUSTRALIA


TASMANIA DISTRICT REGISTRY
GENERAL DIVISION
Burchett J.(1)
CATCHWORDS

Lemonthyme and Southern Forests (Commission of Inquiry) Act 1987 - Interim report - Review under Administrative Decisions (Judicial Review) Act 1977 - Locus standi of environmental bodies which appeared in the Inquiry to seek review - Whether the interim report involved the making of a decision of an administrative character - Whether it should be inferred from silence about a particular consideration that it was not taken into account - Whether irrelevant factors taken into account or relevant factors omitted - Whether an irrelevant factor (though discussed) played no part in the decision - Whether consideration of irrelevant factor was "insignificant" - Nature of questions relating to the "natural heritage" under the Convention for the Protection of the World Cultural and Natural Heritage scheduled to the World Heritage Properties Conservation Act 1983 - Nature of "qualifying areas" under the Lemonthyme and Southern Forests (Commission of Inquiry) Act 1987.

Lemonthyme and Southern Forests (Commission of Inquiry) Act 1987, ss. 3, 4, 8.

World Heritage Properties Conservation Act 1983, Schedule Article

Administrative Decisions (Judicial Review) Act 1977, ss. 3, 5.

HEARING

HOBART

#DATE 19:2:1988

Counsel for the Applicants: Mr. J. Basten

Solicitor for the Applicants: Henry Brookman

Counsel for the 1st Respondent: Mr. W. Bale, QC, Mr A. Hemming, Ms B. Baker

Solicitor for the 1st Respondent: Director of Public Prosecutions

Counsel for the 2nd Respondent: Mr. D. Graham, QC, Mr J. Gobbo

Solicitor for the 2nd Respondent: Australian Government Solicitor

Counsel for the 3rd Respondent: Mr. S. Charles, QC Mr C. Maxwell

Solicitors for the 3rd Respondent: Australian Government Solicitor

ORDER

That the application be dismissed.

That the motion made upon Notice of Motion filed 8 February 1988 be dismissed.

That liberty be reserved to the respondents to the application and to Gunns Kilndried Timber Industries Limited to seek orders in respect of their costs.

NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

JUDGE1

Under the Lemonthyme and Southern Forests (Commission of Inquiry) Act 1987 (the Act), a commission was established to inquire into and report on a number of matters relating to world heritage and potential world heritage areas in parts of Tasmania, and the impact that preservation of those areas would have on the Tasmanian forestry industry. "The object of this Act", it was stated in s.4,

"is to provide for measures that will enable effect to be given, in relation to the Lemonthyme area and the Southern Forests area, to Australia's obligations under the Convention, in particular the obligations to:
(a) identify and delineate the natural heritage and cultural heritage; and
(b) take appropriate measures to protect and conserve that heritage."

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Details
AGLC
Australian Conservation Foundation & Ors v. Forestry Commission & Ors [1988] FCA 41
Case
[1988] FCA 41
Decision Date

CaseChat Overview and Summary

The Australian Conservation Foundation sought judicial review of an interim report issued by the Forestry Commission under the Lemonthyme and Southern Forests (Commission of Inquiry) Act 1987. The matter was heard and determined in the Federal Court of Australia. The primary focus of the review was whether the interim report constituted a decision of an administrative character, warranting judicial review, and whether the environmental body had standing to seek such review.

The court was required to determine several key legal issues, including the standing of the environmental body to seek review, the nature of the interim report and whether it involved the making of a decision of an administrative character, and the interpretation of various legislative provisions. Additionally, the court had to assess whether the silence about a particular consideration indicated it was not taken into account, whether irrelevant factors were considered or relevant factors omitted, and the significance of irrelevant factors being discussed but not affecting the decision. The court also needed to interpret the nature of "natural heritage" under the Convention for the Protection of the World Cultural and Natural Heritage, and the meaning of "qualifying areas" under the Lemonthyme and Southern Forests (Commission of Inquiry) Act 1987.

In its reasoning, the court determined that the interim report did not constitute a decision of an administrative character, and thus was not subject to judicial review. The court further found that the environmental body did not have standing to seek such review. The court also held that silence about a particular consideration did not necessarily mean it was not taken into account, and that the consideration of irrelevant factors, even if discussed, did not necessarily render a decision invalid if such factors played no part in the decision. Regarding the nature of "natural heritage" and "qualifying areas", the court provided interpretations based on the context of the legislative provisions. Ultimately, the court dismissed the application and the motion made upon notice of motion filed on 8 February 1988, reserving liberty for the respondents and Gunns Kilndried Timber Industries Limited to seek orders in respect of their costs.

Orders

Orders of the court

That the application be dismissed.

That the motion made upon Notice of Motion filed 8 February 1988 be dismissed.

That liberty be reserved to the respondents to the application and to Gunns Kilndried Timber Industries Limited to seek orders in respect of their costs.

NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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